THE RESPONDENT’S BRIEF

. . . I’ve given a lot of advice on how to write appellate briefs. 

I’ve focused mostly on the appellant’s opening brief, because it poses the greatest challenge.  Appellate courts reverse less than 20% of the trial court judgments they review, so it’s an uphill battle to get them to reverse in your case.  And the opening brief is the main vehicle for accomplishing this.

Nevertheless, falling into that 20% of reversals can be quite painful for a respondent’s lawyer.  So I should say a few words about respondent’s briefs. 

Much of the advice I’ve given regarding the appellant’s opening brief also applies to the respondent’s brief. You’ll have a better chance of winning if the judge reads and enjoys your brief, so be clear and concise.  You’ll have a better chance of convincing the judge if you are credible, so keep your citations and statements about cases reliable and your arguments reasonable. 

And most important, focus on the justice of your position.

There are, however, a few things to note specifically about the respondent’s brief.

The Standard of Review

The standard of review often determines who wins an appeal.  The appellate court rarely reverses where it can do so only by finding that the trial court abused its discretion or lacked substantial evidence for its findings or verdict.  Reversal is much more likely where the court employs de novo review.

So if the proper standard of review in your case is deferential to the trial court, say so at the outset.  You might win the appeal on the first page of your brief.

Quite often, the appellant’s opening brief will try to squeeze the appeal into de novo review, even where this is questionable.  If the trial court found the facts against him, the appellant might claim that this was based on an erroneous application of the law.  Call him on this—right up front in your respondent’s brief.  If you can convince the appellate court that the proper standard of review is substantial evidence rather than an issue of law, that alone might be enough for you to get an affirmance.

The Statement of Facts

Should you write your own statements of facts, or just refer to the appellant’s statement?

Tough question. 

Most respondent’s attorneys write their own, full-blown statement of facts.  But “Put Yourself in the Shoes of the Decider.”  If you had just read the appellant’s statements of facts, would you be in a mood to read pretty much the same long story again?  Wouldn’t you be likely to skip it, and go straight to the respondent’s argument?  Sure, the respondent will put a spin on the facts that is different from appellant’s spin, but how likely is that that a newcomer to this case (the judge) will catch these nuances when she reads your statement of facts?  And, again, why should she bother?

Here’s one solution.  Tell the reader up front why you’re making her read the story again.  For example:

Appellant argues that the jury’s verdict was not supported by substantial evidence.  But Appellant’s Statement of “Facts” presents only Appellant’s evidence, which the jury presumably found not to be credible.  Here is the evidence that supports the verdict. . . .

Or this:

Appellant claims that no substantial evidence supports the jury’s verdict.  But under the substantial evidence rule, this Court should draw all reasonable inferences from the evidence that support the verdict.  Appellant’s Statement of Facts fails to do this, so we found it necessary to present our own Statement of Facts—on that complies with the applicable standard of review. 

Or this:

Appellant claims that no substantial evidence supports the jury’s verdict.  Appellant’s Statement of Facts relies on the testimony of Mr. Smith, but Mr. Smith’s credibility was impeached, so the jury was entitled to disregard Smith’s testimony entirely.  Therefore, we present the following Statement of Facts—without Smith’s evidence.

Sometimes you can make these points without writing a whole new statement of facts.  Just write something like this in your statement of facts section:

Appellant’s Statement of Facts is mostly accurate, but it leaves out a key fact—the fact on which this case turns: the evidence showed that Mr. Smith admitted that he was mistaken when he said that he saw defendant go through the stop sign without stopping. 

That short, punchy statement might have more impact than a long, new respondent’s statement of facts that includes the above omission. 

Getting a Head Start

When my schedule permits, I like to get a head start.  So I often start work on my respondent’s brief before I receive the appellant’s opening brief.  It eases the pressure of the deadline for filing my brief. 

I review the record and draft statements of facts—both procedural and substantive.  I might need to adjust them after I see the issues and facts in the appellant’s opening brief, but I will have done the bulk of the work.

From reading the trial court record, I’ll have a pretty good idea of what legal issues the appellant will raise.  So I can do some legal research, at least to educate myself on any areas of law that are new to me.  And I might get some ideas for arguments against appellant.